STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE REVOCATION ) OR SUSPENSION OF THE LICENSE OF )

DONALD P. AUSTIN, D.D.S., ) CASE NO. 75-044 TEMPLE TERRACE, FLORIDA. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated hearing officer, G. Steven Pfeiffer, held a public hearing in this case on June 19, 1975 at Tampa, Florida.

The following appearances were entered:

APPEARANCES

For Petitioner: James Brecher (Board of Keller and Brecher

Dentistry) Jacksonville, Florida

For Respondent: Harold W. Mullis, Jr.

(Dr. Austin) Trenam, Simons, Kemker, Sharf & Barkim,

Tampa, Florida RECOMMENDED ORDER

The Florida State Board of Dentistry ("Boards" hereafter) filed an Accusation against Dr. Donald P. Austin, a licensed dentist, on February 3, 1975. In the Accusation it is charged that Dr. Austin violated the laws of Florida and the standards of professional practice by permitting office personnel not licensed by the Florida State Board of Dentistry to perform dental work constituting the practice of dental hygiene. Specific charges against Dr. Austin were set out in count four of the Accusation. Dr. Austin requested a hearing before a hearing officer of the Division of Administrative Hearings through a petition filed February 26, 1975. The final hearing was scheduled in accordance with a notice dated May 2, 1975.

At the hearing the parties stipulated to an amendment to the Accusation. The complete stipulation of the parties is as follows:

"The parties stipulate to the amendment of count four of the Accusation attached as Exhibit A to the petition of the Petitioner, Donald P. Austin, D. D. S., by deleting said count four in its entirety and by substitu- ting in lieu thereof the following: 'Dr.

Donald P. Austin, licensed dentist,

license number 3060, practicing in the State of Florida violated the provisions of Section 466.24(3)(e), Florida Statutes, and the regulations of the Florida State Board of Dentistry, Chapter 21-G-9 by permitting Carmella Carney, an unlicensed person acting under his supervision and control, to perform work, constituting the practice of dental hygiene in that on December 12, 1974, he permitted said Carmella Carney to remove calculus from the teeth of a patient,

Barbara Dubrian.'

The parties hereby stipulate that the proceedings instituted by the State Board of Dentistry against Dr. Stephen Todorovich in counts one

and three of the Accusation attached to the Petition herein, and the proceedings instituted by the State Board of Dentistry against Dr.

Thomas L. Rockwell, contained in count two of said Accusation, have been informally disposed of by the admissions of Doctors Todorovich and Rockwell to the accuracy of the facts contained said counts one, three, and two, respectively, and by Doctors Todorovich and Rockwell receiving a public reprimand in connection therewith from the Florida State Board of Dentistry.

At the hearing Dr. Austin admitted the things set out in the foregoing stipulations. In view of Dr. Austin's admitting the truth of the charges, the Board called no witnesses at the hearing. The Petitioner presented evidence which is to be considered only in mitigation. Dr. Austin testified on his on behalf, and called Carmella Carney, the unlicensed person who was permitted to remove calculus from the teeth of a patient; Dr.

Thomas Pulliam, a licensed dentist who formerly worked with Dr. Austin; and Dr. David Dalgin, a licensed dentist who is familiar with Dr. Austin's professional reputation.

References to the official transcript of proceedings of the final hearing will hereafter be designated "TR" followed by the page number.

FINDINGS OF FACT

1. Dr. Donald P. Austin freely, intelligently, and voluntarily admitted to violation of the provisions of Florida Statutes, 466.24(3)(e), and the Regulations of the Florida State Board of Dentistry, Chapter 21-G-9, Florida Administrative Code, by permitting Carmella Carney, an unlicensed person acting under his supervision and control, to perform work constituting the practice of dental hygiene, in that on Decumber 12, 1974 he permitted said Carmella Carney to remove calculus from the teeth of a patient, Barbara Dubrian. (TR 3-7)

   
   

2. Similar Charges were filed against two licensed dentists who had practiced with Dr. Austin, and the proceedings were informally disposed of by the admissions of the dentists as to the accuracy of facts contained in the Accusation. Each dentist received a public reprimand in connection with those charges.

   
   

3. The incident resulting in charges being filed against Dr. Austin was an isolated incident, and was the only occasion upon which Dr. Austin permitted any unlicensed person acting under his supervision to remove calculus from the teeth of a patient. (TR 9, 14, 15, 25).

   
   

4. Dr. Austin's reputation among his colleagues for professional competence and integrity is excellent. (TR 23 - 25, 28, 29).

   
   

5. The patient involved in this incident had very light calculus, only slightly heavier than heavy stains. Dr. Austin examined the work performed by Ms. Carney, and the teeth were clean. The patient did not complain about the work, and in fact, complemented Ms. Carney for it. Dr. Austin did not charge the patient for the work. (Th 9, 13-15).

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter of this case, and over the parties.

   
   

7. Dr. Donald P. Austin violated the provisions of Florida Statutes, s. 466.24(3)(e), and the regulations of the Florida

   State Board of Dentistry, Chapter 21-G-9, Florida Administrative Code.

   
   

8. Circumstances surrounding the violation of standards of professional practice by Dr. Austin justify the imposition of a public reprimand, but would not justify the revocation or suspension of his license to practice dentistry.

RECOMMENDED ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

RECOMMENDED as follows:

1. That Dr. Donald P. Austin be found to have committed the acts set out in the Accusation filed by the Florida State Board of Dentistry, as amended at the hearing on June 19, 1975.

   
   

2. That the Florida State Board of Dentistry formally and publicly reprimand Dr. Austin for his violation of the standards of his professional practice.

ENTERED this 24th day of July, 1975, in Tallahassee, Florida.

G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Mr. Harold W. Mullis, Jr.

Trenam, Simmons, Kemker, Scharf & Barkin

P.O. Box 1102

Tampa, Florida 33601

Mr. James O. Brecher

605 Florida Theatre Bldg.,

128 E. Forsyth St. Jacksonville, Florida 32202

Executive Director

Florida State Board of Dentistry 6501 Arlington Expressway Jacksonville, Florida

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION STATE BOARD OF DENTISTRY

IN THE MATTER OF THE REVOCATION OR SUSPENSION OF THE LICENSE OF

DONALD P. AUSTIN, D.D.S., CASE NO. 75-044 TEMPLE TERRACE, FLORIDA.

/

FINAL ORDER

This matter came to be considered by the State Board of Dentistry upon the record and Recommended Order received from the Division of Administrative Hearings, Case No. 75-044, and upon the review of the entire record of the proceedings received from the Division of Administrative Hearings, by each member of the Board, and upon proper notice to the licensee of the Board's consideration of this matter on September 6, 1975, in Jacksonville, Florida, the State Board of Dentistry hereby makes the following findings of fact and conclusions of law, to wit:

FINDINGS OF FACT

1. Dr. DONALD P. AUSTIN freely, intelligently, and voluntarily admitted to violation of the provisions of Florida Statutes, s. 466.24(3)(e), and the Regulations of the Florida State Board of Dentistry, Chapter 21G-9, Florida Administrative Code, by permitting Carmella Carney, an unlicensed person acting under his supervision and control, to perform work constituting the practice of dental hygiene, in that on December 12, 1974, he permitted said Carmella Carney to remove calculus from the teeth of a patient, Barbara Dubrian.

   
   

2. Similar charges were filed against two licensed dentists who were personnel in Dr. Austin's office, and the proceedings were informally disposed of by the admissions of the dentists as to the accuracy of facts contained in the Accusation. Each dentist received a public reprimand in connection with those charges. Dr. Austin however, supervise and was responsible for

3. The incident resulting in charges being filed against Dr. Austin was not an isolated incident, and was not the only occasion upon which Dr. Austin permitted an unlicensed person acting under his supervision to remove calculus from the teeth of a patient according to competent, substantial evidence.

   
   

4. Dr. Austin`s reputation among his colleagues for Professional competence and integrity is excellent.

   
   

5. The patient involved in this incident had very light calculus, only slightly heavier than heavy stains. Dr. Austin examined the work performed by Ms. Carney, and the teeth were clean. The patient did not complain about the work, and in fact, complemented Ms. Carney for it. Dr. Austin did not charge the patient for the work.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter of this case, and over the parties.

   
   

7. Dr. Donald P. Austin violated the provisions of Florida Statutes, s. 466.24(3)(e), and the regulations of the Florida State Board of Dentistry, Chapter 21G-9, Florida Administrative Code.

   
   

8. Circumstances surrounding the violation of standards of professional practice by Dr. Austin justify the revocation or suspension of his license to practice dentistry. Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby:

ORDERED AND ADJUDGED that DR. DONALD P. AUSTIN, D.D.S., is

found to have committed the acts set out in the Accusation filed by the Florida State Board of Dentistry as amended at the hearing on June 19, 1975. It is further;

ORDERED AND ADJUDGED that DR. DONALD P. AUSTIN, D.D.S., be

suspended from the practice of dentistry for a period of six (6) months, commencing on the date this Order is issued.

DATED this 8th day of November 1975.

BY ORDER OF Dr. Irving Gordon, D.D.S., Dr. Cliff Gwynn, Jr., D.D.S., Dr. Edgar A. Cosby, D.D.S., Dr. Alvin H. Savage, D.D.S., Dr. James C. Tyson, D.D.S., Dr. Louis Vodila, D.D.S., and Dr.

William R. Dannahower, D.D.S., as and constituting the members of the Florida State Board of Dentistry.

DR. IRVING GORDON, D.D.S.

Chairman, Board of Dentistry

DR. JAMES C. TYSON, D.D.S.

Secretary-Treasurer, Board of Dentistry

COPIES FURNISHED:

Mr. Harold Mullis, Jr.

Trenam, Simmons, Kemker, Scharf & Barkin

P.O. Box 1102

Tampa, Florida 33601

Mr. James O. Brecher

605 Florida Theatre Bldg.,

128 E. Forsyth St. Jacksonville, Florida 32202

Docket for Case No: 75-000044

Orders for Case No: 75-000044